Citation Nr: 0336117
Decision Date: 12/22/03 Archive Date: 12/29/03
DOCKET NO. 99-07 286 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an increased rating from an original grant
of service connection for dysthymic disorder and social
phobia, currently evaluated as 50 percent disabling.
2. Entitlement to an increased rating for acne vulgaris,
cystic type, currently evaluated as 30 percent disabling.
3. Entitlement to a total rating for compensation purposes
based on individual unemployability due to service-connected
disorders (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant; appellant and friend
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from January 1969 to
February 1971.
This case comes before the Board of Veterans' Appeals (Board)
from rating decisions rendered by the Columbia, South
Carolina, Regional Office (RO) of the Department of Veterans
Affairs (VA).
In July 2000 and June 2003, personal hearings were held
before the undersigned Acting Veterans Law Judge, sitting in
Washington, D.C.
The case was previously before the Board in October 2000, at
which time it was remanded for additional development of the
evidence. The requested development having been completed,
the case is once again before the Board for appellate
consideration.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify you if
further action is required on your part.
REMAND
The veteran has asserted that his acne vulgaris is subject to
periods of severe flare-up. However, examinations of record
appear to have been largely conducted when the acne was less
active. Accordingly, the Board is of the opinion that
another examination would be beneficial. See Bowers v.
Brown, 2 Vet. App. 675 (1992); Ardison v. Brown, 2 Vet. App.
405 (1994) (examination for a skin disorder should be
scheduled when the disorder is most disabling). The veteran
should endeavor to schedule such examination during a flare-
up and show a copy of this decision to the RO when scheduling
such examination. In the event he is unable to schedule the
examination during a flare-up, the veteran should obtain
unretouched color photographs of the affected areas.
The appellant is hereby notified that it is his
responsibility to report for any examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158, 3.655
(2003).
The Board also notes that the United States Court of Appeals
for the Federal Circuit, in a decision promulgated on
September 22, 2003, invalidated the 30-day response period
contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with
38 U.S.C.A § 5103(b)(1). Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir.
2003). The Federal Court made a conclusion similar to the
one reached in DAV v. Principi, supra, (reviewing a related
Board regulation, 38 C.F.R. § 19.9). In the more recent
decision, the Federal Court found that the 30-day period
provided in § 3.159(b)(1) for response to a Veterans Claims
Assistance Act of 2000 (VCAA) duty to notify is misleading
and detrimental to claimants whose claims are prematurely
denied short of the statutory one-year period provided for
response. Therefore, since this case is being remanded for
additional action, the RO must take this opportunity to
inform the appellant that, notwithstanding the information
previously provided, a full year is allowed to respond to a
VCAA notice.
Accordingly, further appellate consideration will be deferred
and the case is REMANDED to the RO for the following actions:
1. The RO should schedule the veteran
for a VA examination by a dermatologist
to determine the current severity and
manifestations of his service-connected
acne vulgaris, endeavoring to schedule
same when the veteran's skin disorder is
most disabling.
All necessary tests and studies should be
conducted including, but not limited to,
photographs of all affected areas; such
photographs should be associated with the
claims folder. The claims folder and a
copy of this Remand must be made
available to and thoroughly reviewed by
the examiner prior to the examination,
including, but not limited, to the
photographs already in the claims file,
for proper review of the medical history,
and the examiner must indicate in the
examination report that he or she has
reviewed the claims folder.
The dermatologist is asked to
specifically evaluate the veteran's acne
vulgaris, cystic type, as well as any
disfigurement, lesions, scarring,
ulcerations, itching, pain or tenderness,
exfoliation, exudation, crusting, pigment
changes, or systemic or nervous
manifestations found present. Any
opinion expressed should be accompanied
by a written rationale. The report of
the examination should be associated with
the veteran's claims folder.
2. Thereafter, the veteran should be
scheduled for an examination by a
psychiatrist who has not previously
examined the veteran. The examiner is
requested to review the claims file and
prior medical reports, as well as the
photographs from February 2001, together
with any additional photographs.
The purpose of the psychiatric
examination is to ascertain the nature
and severity of the veteran's service
connected disability. All indicated
tests, including appropriate
psychological studies with applicable
subscales, must be conducted. The claims
file must be made available to and
reviewed by the examiner prior to the
examination. The complete rationale for
each opinion expressed should be set
forth in a typewritten report.
The examiner must offer also offer an
opinion as to whether it is at least as
likely as not that the veteran is unable
to obtain and maintain substantially
gainful employment solely as a result of
his service-connected disabilities,
without regard to his age or any
nonservice-connected disorders. The
examination report must include a
complete rationale for all opinions and
conclusions expressed.
3. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, as well as
38 U.S.C.A. §§ 5102, 5103, and 5103A,
(West 2002) and 38 C.F.R. § 3.159 (2003),
and any other applicable legal precedent.
See also See Quartucccio v. Principi
4. When the development requested has
been completed, the case should again be
reviewed by the RO on the basis of the
additional evidence. If the benefits
sought are not granted, the appellant and
his representative should be furnished a
supplemental statement of the case, and
be afforded the applicable opportunity to
respond before the record is returned to
the Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
MICHAEL SIEGEL
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).